Exhibit 10.6
Form of Indemnification Agreement
INDEMNIFICATION AGREEMENT ,
dated as of [ ], 2007, between RSC Holdings Inc., a Delaware
corporation (the “ Company ”), and [ ] (“
Indemnitee ”).
WHEREAS, qualified persons are
reluctant to serve corporations as directors or otherwise unless
they are provided with broad indemnification and insurance against
claims arising out of their service to and activities on behalf of
the corporations; and
WHEREAS, the Company has determined
that attracting and retaining such persons is in the best interests
of the Company’s stockholders and that it is reasonable,
prudent and necessary for the Company to indemnify such persons to
the fullest extent permitted by applicable law and to provide
reasonable assurance regarding insurance;
NOW, THEREFORE, the Company and
Indemnitee hereby agree as follows:
1. Defined Terms;
Construction .
(a)
Defined Terms . As used in this Agreement, the following
terms shall have the following meanings:
“ Affiliate ”
means, with respect to any Person, ( i ) any other Person
directly or indirectly Controlling, Controlled by or under common
Control with, such Person ( ii ) any Person directly or
indirectly owning or Controlling 10% or more of any class of
outstanding voting securities of such Person or ( iii ) any
officer, director, general partner or trustee of any such Person
described in clause (i) or (ii). “ Control
” of any Person shall consist of the power to direct the
management and policies of such Person (whether through the
ownership of voting securities, by contract, as trustee or
executor, or otherwise).
“ Change in Control
” means, and shall be deemed to have occurred if, on or after
the date of this Agreement, ( i ) any “person”
(as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended), other than ( A ) a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its subsidiaries acting in
such capacity, or ( B ) the Investors, is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company
representing more than 50% of the total voting power represented by
the Company’s then outstanding Voting Securities, ( ii
) during any period of two consecutive years, individuals who at
the beginning of such period constitute the board of directors of
the Company and any new director whose election by the board of
directors of the Company or nomination for
election
by the Company’s stockholders was approved by a vote of at
least two thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof, ( iii
) the consummation of any merger or consolidation of the Company
with any other corporation other than a merger or consolidation
that would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least 50% of the total
voting power represented by the Voting Securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, ( iv ) the complete liquidation of the
Company or the sale or disposition by the Company of (in one
transaction or a series of related transactions) all or
substantially all of its assets, or ( v ) the Company shall
file or have filed against it, and such filing shall not be
dismissed, any bankruptcy, insolvency or dissolution proceedings,
or a trustee, administrator or creditors committee shall be
appointed to manage or supervise the affairs of the Company.
“ Corporate Status
” means the status of a person who is or was a director (or a
member of any committee of a board of directors), officer, employee
or agent (including without limitation a manager of a limited
liability company) of the Company or any of its subsidiaries, or of
any predecessor thereof, or is or was serving at the request of the
Company as a director (or a member of any committee of a board of
directors), officer, employee or agent (including without
limitation a manager of a limited liability company) of another
corporation, limited liability company, partnership, joint venture,
trust or other enterprise, or of any predecessor thereof, including
service with respect to an employee benefit plan.
“ Determination ”
means a determination that either ( x ) there is a
reasonable basis for the conclusion that indemnification of
Indemnitee is proper in the circumstances because Indemnitee met a
particular standard of conduct (a “ Favorable
Determination ”) or ( y ) there is no reasonable
basis for the conclusion that indemnification of Indemnitee is
proper in the circumstances because Indemnitee met a particular
standard of conduct (an “ Adverse Determination
”). An Adverse Determination shall include the decision that
a Determination was required in connection with indemnification and
the decision as to the applicable standard of conduct.
“ DGCL ” means the
General Corporation Law of the State of Delaware, as amended from
time to time.
“ Expenses ” means
all attorneys’ fees and expenses, retainers, court,
arbitration and mediation costs, transcript costs, fees of experts,
bonds, witness fees, costs of collecting and producing documents,
travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees and all other
disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, being or preparing to be a witness in,
appealing or otherwise participating in a Proceeding.
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“ Independent Legal
Counsel ” means an attorney or firm of attorneys
competent to render an opinion under the applicable law, selected
in accordance with the provisions of Section 5(e), who has not
otherwise performed any services for the Company or any of its
subsidiaries or for Indemnitee within the last three years (other
than with respect to matters concerning the rights of Indemnitee
under this Agreement or of other Indemnitees under indemnity
agreements similar to this Agreement).
“ Investors ”
means, collectively, ( i ) RSC Acquisition LLC, RSC
Acquisition II LLC, OHCP II RSC, LLC, OHCMP II RSC, LLC and OHCP II
RSC COI, LLC, ( ii ) any Affiliate of any of the foregoing,
including any investment fund or vehicle managed, sponsored or
advised by any of the foregoing and ( iii ) any successor in
interest to any of the foregoing.
“ Person ” means
an individual, corporation, limited liability company, limited or
general partnership, trust or other entity, including a
governmental or political subdivision or an agency or
instrumentality thereof.
“ Proceeding ”
means a threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, including without limitation a claim, demand,
discovery request, formal or informal investigation, inquiry,
administrative hearing, arbitration or other form of alternative
dispute resolution, including an appeal from any of the
foregoing.
“ Voting Securities
” means any securities of the Company that vote generally in
the election of directors.
(b)
Construction . For purposes of this Agreement,
(i)
References to the Company and any of its “subsidiaries”
shall include any corporation, limited liability company,
partnership, joint venture, trust or other entity or enterprise
that before or after the date of this Agreement is party to a
merger or consolidation with the Company or any such subsidiary or
that is a successor to the Company as contemplated by Section 8(d)
(whether or not such successor has executed and delivered the
written agreement contemplated by Section 8(d)).
(ii)
References to “fines” shall include any excise taxes
assessed on Indemnitee with respect to an employee benefit
plan.
(iii)
References to a “witness” in connection with a
Proceeding shall include any interviewee or person called upon to
produce documents in connection with such Proceeding.
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2. Agreement to Serve
.
Indemnitee agrees to serve as a
director of the Company or one or more of its subsidiaries and in
such other capacities as Indemnitee may serve at the request of the
Company from time to time, and by its execution of this Agreement
the Company confirms its request that Indemnitee serve as a
director and in such other capacities. Indemnitee shall be entitled
to resign or otherwise terminate such service with immediate effect
at any time, and neither such resignation or termination nor the
length of such service shall affect Indemnitee’s rights under
this Agreement. This Agreement shall not constitute an employment
agreement, supersede any employment agreement to which Indemnitee
is a party or create any right of Indemnitee to continued
employment or appointment.
3. Indemnification
.
(a)
General Indemnification . The Company shall indemnify
Indemnitee, to the fullest extent permitted by applicable law in
effect on the date hereof or as amended to increase the scope of
permitted indemnification, against Expenses, losses, liabilities,
judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges in
connection therewith) incurred by Indemnitee or on
Indemnitee’s behalf in connection with any Proceeding in any
way connected with, resulting from or relating to
Indemnitee’s Corporate Status.
(b)
Additional Indemnification Regarding Expenses . Without
limiting the foregoing, in the event any Proceeding is initiated by
Indemnitee or the Company or any of its subsidiaries to enforce or
interpret this Agreement or any rights of Indemnitee to
indemnification or advancement of Expenses (or related obligations
of Indemnitee) under the Company’s or any such
subsidiary’s certificate of incorporation or bylaws, any
other agreement to which Indemnitee and the Company or any of its
subsidiaries are party, any vote of stockholders or directors of
the Company or any of its subsidiaries, the DGCL, any other
applicable law or any liability insurance policy, the Company shall
indemnify Indemnitee against all Expenses incurred by Indemnitee or
on Indemnitee’s behalf in connection with such Proceeding,
whether or not Indemnitee is successful in such Proceeding, except
to the extent that the court presiding over such Proceeding
determines that material assertions made by Indemnitee in such
Proceeding were in bad faith or were frivolous.
(c)
Partial Indemnification . If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company
for a portion of any Expenses, losses, liabilities, judgments,
fines, penalties and amounts paid in settlement incurred by
Indemnitee, but not for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for such portion.
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(d)
Nonexclusivity . The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which
Indemnitee may be entitled under the Company’s certificate of
incorporation or bylaws, any agreement, any vote of stockholders or
directors, the DGCL, any other applicable law or any liability
insurance policy.
(e)
Exceptions . Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated under the
Agreement to indemnify Indemnitee:
(i)
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